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Catherine Ortiz v. Michael J. Astrue


March 19, 2013


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


Plaintiff Catherine Ortiz ("Ortiz") seeks review of the decision by Michael J. Astrue, the Commissioner of the Social Security Administration, denying her claim for disability benefits. 19 Ortiz moves for summary judgment and/or a remand. ECF No. 14 ("Mot."). The Commissioner 20 opposes the motion and cross-moves for summary judgment. ECF No. 15 ("Opp'n"). Pursuant to 21 Civil Local Rule 7-1(b), the Court finds these motions appropriate for determination without oral 22 argument. Having considered the parties' papers and the administrative record, the Court DENIES 23 Ortiz's motion for summary judgment, and GRANTS the Commissioner's cross-motion for 24 summary judgment. 25


Ortiz is currently a fifty-three year old woman who was born on November 23, 1959, and 27 completed high school with a GED. Administrative Record ("AR") 62, 176, 215. On or around 28 June 17, 2008, while shopping at a Walgreen's drug store, a woman approached Ortiz from behind 2 and twice struck Ortiz in the head with a hammer. AR 45, 261, 283. The female assailant "was 3 responding to auditory hallucinations commanding her to kill Ms. Ortiz." AR 261. Ortiz alleges 4 that this assault rendered her disabled and unable to work. AR 180. 5

A.Agency Review

On October 9, 2008, Ortiz filed an application for disability insurance benefits ("DIB") and 7 supplemental security income claiming that, since the June 17, 2008 assault, she has been unable to 8 work due to bad headaches and feelings of nervousness, anxiety, and pain. AR 116, 180. 9

The Social Security Administration ("SSA") denied Ortiz's request for both types of 10 benefits on January 15, 2009. AR 112-113. After reviewing Ortiz's statements and medical reports, and considering her age, education, training, and work experience, the SSA found that Ortiz's condition was not severe enough to preclude her from working. AR 116, 122. Regarding 13 Ortiz's reported nervousness and anxiety, the SSA found that Ortiz is still able to "think, 14 communicate, and act in [her] own interest." AR 116. The SSA also found that Ortiz is able to 15 "adjust to ordinary emotional stresses, and to get along with others, as well as to do [her] usual 16 activities and to remember and follow basic instructions." Id. In regard to Ortiz's reported bad 17 headaches and pain, the SSA found that, despite Ortiz's discomfort, she was "still able to move 18 about and to use [her] arms, hands and legs in a satisfactory manner." AR 116. Consequently, the 19 SSA concluded that, although Ortiz "cannot do [her] past work, [her] condition does not preclude 20 [her] from all work activities." AR 117. 21

Ortiz requested that her claim be reconsidered and submitted additional medical records in 12 22 support of her application. AR 121, 122. The SSA denied this request as well, concluding that 23 Ortiz "may not be able to perform [her] past work, [but] based on [her] age, education and past 24 work experience, [she] can do other work that is easy to learn and remember." AR 122-23. 25

B.Administrative Review

Ortiz sought administrative review of the SSA's decision. At a hearing before Administrative Law Judge ("ALJ") Christopher Skarda on June 1, 2010, Plaintiff appeared with 28 counsel and testified about her mental and physical health and how it affects her ability to work. 2 AR 45-111. Medical expert Thomas Singer, M.D., and vocational expert Ronald Morrell also 3 testified, AR 53, 102, as did Plaintiff's fiance, Arthur Yslava, AR 94. 4

1.Ortiz's Testimony at the June 1, 2010 hearing

At the June 1, 2010 hearing, Ortiz testified about the following debilitating effects that the 6 assault has had on her physical and mental well-being. 7 Although she never had any psychological problems prior to the assault, AR 74, Ortiz has 8 experienced anxiety, depression, and post-traumatic stress disorder ("PTSD") since the incident, 9 AR 86. She has started to drink because she "didn't want to deal with the issues that I have." AR 10 69, AR 72. Ortiz has also lost interest in going anywhere public that is likely to be highly populated. AR 75. Instead, Ortiz spends most of her time at home, sleeping. AR 85, 88. She is highly dependent on her fiance. AR 88. In addition, Ortiz's feelings of anxiety and depression 13 have been exacerbated by the fact that the woman who assaulted her now lives approximately two 14 blocks away from her daughter. AR 86, 87. 15

In addition, since the assault, Ortiz has been getting severe headaches approximately three 16 to four times a week that are progressively getting worse. AR 68, 73. In an effort to treat these 17 headaches, she takes Ibuprofen; she is not interested in taking prescription medicine. AR 69, 73. 18

According to Ortiz, the assault has detrimentally affected her ability to work. Prior to the 19 incident, Ortiz worked as a business manager for a medical placement agency from approximately 20 1997 to 2002. AR 77. At the end of 2002, Ortiz quit her job and then started collecting 21 unemployment benefits. AR 78. From 2002 through 2008, Ortiz worked in a variety of short term 22 and part time jobs, such as doing payroll and bank reconciliation for a plumbing company, AR 79, 23 working as a manager at Wal-Mart, AR 79, and doing day care, AR 66. Since June of 2008, 24 however, Ortiz has not been able to work at all. AR 64. She does not have medical insurance, and 25 is dependent on government assistance, such as food stamps, and financial assistance from her 26 fiance. AR 64. 27 28

Although Ortiz has sought counseling and other forms of support to cope with the effects of 2 the assault, she continues to struggle. Soon after the incident, from July of 2008 through December 3 of 2008, Ortiz went to see a marriage/family/child counselor, Ann Bliss, MFT. AR 69. She 4 attended seven counseling sessions with Ms. Bliss, but said that she stopped going because "it was 5 hard for me to go to her because it would just bring back all the memories of that night." AR 69. 6

Ortiz then started drinking as a coping mechanism. AR 90. However, because Ortiz wanted to 7 deal with her issues, Ortiz participated in a substance abuse treatment program called Changing 8 Echoes. AR 81, 90. The program, which lasted for one month and cost $10,000, was paid for by 9 her fiance's union. AR 81-82. Her sobriety date is November 27, 2009. AR 81. 10

As an alternative to taking prescription medication in order to deal with her headaches, Ortiz started seeing Dr. Menaw, a hypnotherapist. AR 73. The hypnotherapy is not working. AR 73-74. When asked whether Ortiz had considered trying something different, Ortiz responded by 13 stating, "Well, I don't have any insurance so that's hard." AR 74. 14 The ALJ also asked Ortiz several questions regarding her prior methamphetamine use.

Ortiz admitted that she had methamphetamines in her body at the time of the incident, which she 16 described as a "one-time deal," but stated that her drug use had nothing to do with the incident. 17

AR 70. The ALJ proceeded to ask Ortiz at least four times whether she was addicted to 18 methamphetamines. AR 69-73. Ortiz consistently responded in the negative. AR 69-73. She did 19 concede that she had snorted methamphetamines on other occasions, though stated that she had 20 only done so "altogether maybe six times." AR 71. 21

When discussing the incident, Ortiz testified as follows: "I didn't ask for this to happen.

Before this incident I was living my life fine and I was doing well and it happened and here I am. 23

And I know a lot of people tell me you should get over it and not think about it, but I can't help it. 24

I can't help the way I feel, okay. I wish it didn't happen. I wish it wouldn't ever have happened." 25 AR 93. 26

2.The ALJ's Findings

On June 24, 2010, the ALJ issued his decision, denying Ortiz's medical-vocational 2 eligibility for Disability Insurance Benefits and Supplemental Security Income. AR 22. In finding 3 that Ortiz did not qualify for benefits under the Social Security Act, the ALJ considered testimony 4 from the hearing, as well as medical reports, employment documents, and other attorney-supplied 5 evidence, such as the police report from the June 2008 assault. AR 33-36. The ALJ then analyzed 6 Ortiz's claims under the five-step evaluation process for determining disability. AR 23; see 20 7 C.F.R. §§ 404.1520(a), 416.920(a). 8

First, the ALJ found that Ortiz met the insured status requirements of the Social Security Act and had not engaged in substantial gainful activity ("SGA") since June 17, 2008, the alleged 10 onset date. AR 24; see 20 C.F.R. § 404.1571 et seq., and 20 C.F.R. § 416.971 et seq. Second, the ALJ determined that Ortiz was not disqualified from obtaining disability benefits due to a dearth of "severe" impairments, as she presents with PTSD, anxiety, depression, and polysubstance abuse. 13

AR 24. However, based on all of the evidence in the record, the ALJ determined that Ortiz's 14 headaches were "not medically determinable or [are] non-severe." AR 25. Third, the ALJ 15 determined that Ortiz's impairments did not meet or equal any impairment listed in 20 C.F.R., Part 16 404, Subpt. P., App. 1 ("Listed Impairment"). Consequently, she did not categorically qualify as 17 "disabled." 18

When analyzing Ortiz's residual functional capacity, the ALJ found that Ortiz had the 19 physical capacity to perform a full range of work at all exertion levels, but had certain 20 "non-exertional" limitations, including working in low stress jobs and being limited to "simple, 21 routine, and repetitive tasks." AR 27. The ALJ discounted Ortiz's complaints of greater mental 22 limitations, finding Ortiz's allegations and testimony regarding the severity and persistence of her 23 symptoms to be "not entirely credible." AR 30. 24

The ALJ then determined, at the fourth step, that Ortiz could not perform past relevant 25 work because Ortiz was limited to performing simple and repetitive tasks in low-stress jobs with 26 limited social interaction, while her past relevant work was semiskilled or skilled. AR 27, 31. 27 28

Finally, after considering Ortiz's age, education, work experience, and residual functional 2 capacity, the ALJ found that there were jobs that existed in significant numbers in the national 3 economy that Ortiz could perform. AR 32. For example, the ALJ found that Ortiz would be able 4 to perform jobs such as hand packers, custodians, and dishwashers. AR 32. Consequently, the 5 ALJ determined that Ortiz "has not been under a disability, as defined in the Social Security Act, 6 from June 17, 2008, through the date of the decision." AR 32. 7

C.The Appeal Council's Denial of Review

Ortiz appealed the ALJ's decision to the Appeals Council. AR 16. Ortiz submitted 9 additional evidence to the Appeals Council, including Santa Clara Valley Medical Center treatment 10 records dated July 24, 2010, and Dr. Mehdikhan's medical treatment records dated August 4, 2010.

AR 10, 399-409. The Appeals Council considered the additional evidence, but determined that it did not provide a basis for changing the ALJ's decision. AR 7-8. The Appeals Council denied 13 Ortiz's request for review. AR 7. 14


A.Standard for Reviewing the ALJ Decision

The Court has authority to review an ALJ's decision pursuant to 42 U.S.C. § 405(g). See Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011) ("When the Appeals 18 Council denies a request for review, it is a non-final agency action not subject to judicial review 19 because the ALJ's decision becomes the final decision of the Commissioner."). "[W]hen the 20 Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that 21 evidence becomes part of the administrative record, which the district court must consider when 22 reviewing the Commissioner's final decision for substantial evidence." Brewes v. Comm'r of Soc. 23 Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). 24

A court may only disturb the ALJ's decision if it is unsupported by substantial evidence in 25 the record as a whole or if it is not an application of the proper legal standard. Burch v. Barnhart, 26 400 F.3d 676, 679 (9th Cir. 2005). "Substantial evidence is such relevant evidence as a reasonable 27 mind might accept as adequate to support a conclusion." Vertigan v. Halter, 260 F.3d 1044, 1049 28 (9th Cir. 2001) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). It "means more than a 2 scintilla but less than a preponderance." Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) 3 (citation and internal quotation marks omitted). If the evidence supports more than one rational 4 interpretation, a court must uphold the ALJ's conclusion. Burch, 400 F.3d at 680-81. This 5 substantial evidence standard also applies when reviewing an ALJ's credibility determinations. 6

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 7

B.Standard for Determining Disability

The Social Security Act defines disability as the "inability to engage in any substantial 9 gainful activity by reason of any medically determinable physical or mental impairment which can 10 be expected to result in death or which has lasted or can be expected to last for a continuous period 11 of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

The impairment must also be so severe 12 that a claimant is unable to do her previous work, and cannot "engage in any other kind of 13 substantial gainful work which exists in the national economy," given her age, education, and work 14 experience. 42 U.S.C. § 423(d)(2)(A). 15

Disability claims are evaluated using a five-step evaluation process. 20 C.F.R. § 404.1520.

In step one, the ALJ must determine whether the claimant is presently engaged in substantially 17 gainful activity. 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ 18 proceeds to step two and determines whether the claimant has a severe impairment or combination 19 of impairments. 20 C.F.R. § 404.1520(c). 20

At step two, if the claimant does not have a severe impairment or combination of 21 impairments, the claimant is not disabled. Otherwise, the evaluation proceeds to step three. 22

At step three, the ALJ must determine whether the claimant's impairment or combination of 23 impairments meets or medically equals the requirements of the Listing of Impairments, 20 C.F.R. 24 § 404, subpart P, app. 1. 20 C.F.R. § 404.1520(d). If so, the claimant is disabled. If not, the ALJ 25 must proceed to step four. 26 At step four, the ALJ must determine the claimant's residual functional capacity ("RFC") 27 despite limitations from the claimant's impairments. 20 C.F.R. § 404.1520(e). If, given her RFC, 28 the claimant can still perform work that the individual has done in the past, the claimant is not 2 disabled. If the claimant cannot perform her past work, the evaluation proceeds to step five. 20 3

C.F.R. § 404.1520(f). 4

At step five, the Commissioner has the burden of demonstrating that the claimant is not 5 disabled. The Commissioner must show that the claimant can perform some substantial gainful 6 work in the national economy, considering the claimant's age, education, and vocational 7 background. 20 C.F.R. § 404.1520(g)(1). If not, the claimant is disabled. 8 The claimant has the burden of proof at steps one through four, and the Commissioner has 9 the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). 10

"The Commissioner can meet this burden through the testimony of a vocational expert or by 11 reference to the Medical Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2." Thomas, 278 F.3d at 955. 13


Ortiz alleges that the ALJ's denial of disability benefits was not supported by substantial 15 evidence. Specifically, Ortiz contends that the ALJ erred when evaluating Ortiz's RFC by 16 discounting medical opinion and symptom evidence. According to Ortiz, these errors tainted the 17 ALJ's findings at step five because he used an unsupported RFC for the comparison of limits and 18 job duties. Mot. at 4. 19 "'Residual functional capacity' is what the individual can still do despite her limitations."

Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001) (citing 20 C.F.R. § 404.1545 (2000)). "If 21 the individual can still do the work she did in the past, then the ALJ should determine that she is 22 not disabled." Id. (citing 20 C.F.R. §§ 404.1520(e), 404.1561 (2000)). "If she cannot do the work 23 she did in the past, the ALJ should consider her residual functional capacity, age, education, and 24 past work experience to determine whether she can do other work. If she can do other work, then 25 she is not disabled." Id. (citing 20 C.F.R. §§ 404.1520(f), 404.1594(f)(8) (2000)). 26

Here, the ALJ found that Ortiz had the residual functional capacity to perform a full range 27 of work at all exertional levels with certain non-exertional limitations. According to the ALJ, Ortiz 28 was limited to: (1) simple, routine, and repetitive tasks; (2) low stress jobs involving only 2 occasional decision-making and changes in the work setting; and (3) jobs that require only 3 occasional conversation and interpersonal interactions. AR 27. Further, the ALJ noted that Ortiz 4 must avoid jobs of which the essential function is interpersonal communications. Id. Based on the 5 RFC assessment and the vocational expert's testimony, the ALJ concluded in step five that Ortiz is 6 capable of making a successful adjustment to other work that existed in significant numbers in the 7 national economy, such as a hand packer, custodial work and dishwasher. AR 32. 8

For the reasons stated herein, the Court finds that the record as a whole provides substantial 9 evidence to support the ALJ's decision. 10

A.Substantial Evidence Supports the ALJ's Evaluation of Mental Impairment Evidence 12 impairment medical evidence and failed to fully develop the record. Mot. at 5. The Court 13 disagrees. Substantial evidence supports the ALJ's evaluation of the mental impairment medical 14 evidence. 15

1.The ALJ Properly Considered the Mental Impairment Evidence in the Record

Ortiz claims that the ALJ improperly discounted the medical opinion of Ortiz's treating Ortiz argues that, when determining her RFC, the ALJ improperly discounted mental 17 psychologist, M. Mehdikhan, Ph.D., who treated Ortiz from January through May of 2010, and 18 opined that if Ortiz were to work, Ortiz would have severe limitations in her mental functioning 19 and ability to perform work. For example, Dr. Mehdikhan opined that Ortiz would be completely 20 unable to "complete a normal workday and workweek without interruptions from psychologically 21 based symptoms," AR 379, or "interact appropriately with the general public," AR 380. The ALJ 22 gave Dr. Mehdikhan's opinion "very little weight." AR 29. 23

"Although a treating physician's opinion is generally afforded the greatest weight in 24 disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the 25 ultimate determination of disability." Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 26 (9th Cir. 2004) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)). The ALJ may 27 disregard the treating physician's opinion if the ALJ sets forth "specific, legitimate reasons" based 28 on substantial evidence in the record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). This 2 can be done by "setting out a detailed and thorough summary of the facts and conflicting clinical 3 evidence, stating his interpretation thereof, and making findings." Reddick v. Chater, 157 F.3d 4 715, 725 (9th Cir. 1998) (citation omitted). The ALJ may discredit treating physicians' opinions 5 that are "conclusory, brief, and unsupported by the record as a whole, or by objective medical 6 findings." Batson, 359 F.3d at 1195. 7

Here the ALJ provided a reasoned explanation for discounting Dr. Mehdikhan's opinions.

First, the ALJ noted that Dr. Mehdikhan did not have a "longitudinal history" with Ortiz. AR 29. 9 Indeed, Dr. Mehdikhan only treated Ortiz for about four months, from January 18, 2010, to May 10 17, 2010. AR 345, 377. Second, the ALJ noted that it is "not clear from Dr. Mehdikhan's brief treatment notes that [the doctor] was aware of [Ortiz's] history of substance abuse." AR 29. Dr. Mehdikhan reported that alcohol or substance abuse had not contributed to any of Ortiz's 13 functional limitations. AR 381. However, nothing in the record indicates that Dr. Mehdikhan 14 knew of Ortiz's prior methamphetamine use. See AR 345-381. Yet, as Dr. Singer testified, 15 methamphetamine is a powerful drug, the withdrawal from which may cause serious clinical 16 depression. AR 61-62. Thus, Dr. Mehdikhan's lack of awareness of Ortiz's prior drug use may 17 have led Dr. Mehdikhan to improperly exclude the possibility that Ortiz's depression was caused 18 by substance withdrawal. See id. 19

In addition, the ALJ found Dr. Mehdikhan's opinions, provided in a "check the box" Mental RFC Questionnaire, to be "conclusory" and based primarily on Ortiz's subjective 21 complaints rather than objective clinical findings. AR 29. The Ninth Circuit has held that the ALJ 22 may "permissibly reject[] . . . check-off reports that do not contain any explanation of the bases of 23 their conclusions." Molina, 674 F.3d at 1111-12 (internal quotation marks and citation omitted); 24 see also 20 C.F.R. § 416.927(c)(3) ("The more a medical source presents relevant evidence to 25 support an opinion, particularly medical signs and laboratory findings, the more weight we will 26 give that opinion."). Notably, Dr. Singer also found that Dr. Mehdikhan's "check the box" form 27 28 was not sufficient to assess Ortiz's condition because it did not include any information related to 2 the duration, intensity, or frequency of any of Ortiz's symptoms. AR 55. 3

Finally, the ALJ noted that Dr. Mehdikhan's opinion was not consistent with the record as a 4 whole. AR 29. 5

The ALJ provided "specific and legitimate reasons" for discounting the opinions of Ortiz's 6 treating psychologist, Dr. Mehdikhan, on the basis of being "conclusory, brief, and unsupported by 7 the record as a whole, or by objective medical findings." Batson, 359 F.3d at 1195. Thus, the ALJ 8 considered the mental impairment evidence in the record properly.*fn1 9

2.The ALJ Fulfilled the Duty to Develop an Adequate Record

Ortiz further bases her argument that the ALJ's decision was not supported by substantial evidence on a diagnosis of Postconcussive Disorder made by Paula Chaffee, Ph.D., three months after the ALJ's decision. See Ex. to Mot. at 1 ("Neuropsychological Screening Evaluation"). "In 13 Social Security cases, the ALJ has a special duty to develop the record fully and fairly and to 14 ensure that the claimant's interests are considered, even when the claimant is represented by 15 counsel." Mayes, 276 F.3d at 459 (citing Tonapetyan, 242 F.3d at 1150); Webb v. Barnhart, 433 16 F.3d 683, 687 (9th Cir. 2005) ("The ALJ's duty to supplement a claimant's record is triggered by 17 ambiguous evidence, the ALJ's own finding that the record is inadequate or the ALJ's reliance on 18 an expert's conclusion that the evidence is ambiguous."). 19

Ortiz argues that the ALJ should have developed the record in order to rule out that Ortiz 12 20 has a "Postconcussive disorder." Mot. at 6. However, Ortiz did not provide the ALJ with any 21 medical evidence indicating that she has this impairment. But see 20 C.F.R. § 404.1512(c) ("You 2 must provide medical evidence showing that you have impairment(s) and how severe it is during 3 the time you say you are disabled."). Indeed, Dr. Chaffee's neuropsychological assessment took 4 place on September 29, 2010, more than three months after the ALJ's decision. See Mot. Ex. 1 at 5 1; AR 32 (the ALJ's decision was issued on June 24, 2010). Therefore, the ALJ had no duty to 6 further develop the record by independently exploring the possibility of a medical condition that 7 Ortiz did not assert until three months after the ALJ's decision. See Mayes, 276 F.3d at 459 8 (holding that the ALJ had no duty to develop the record by exploring Plaintiff's condition 9 diagnosed five months after the ALJ's decision). 10

Moreover, the ALJ did not have a duty to further develop the record. "An ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Id. at 459-60. In this case, the 13 record before the ALJ was neither ambiguous nor inadequate to allow for proper evaluation of the 14 evidence. The ALJ considered Ortiz's complete medical record starting from the day of the 15 assault, including the opinions of Ortiz's therapist, Ms. Bliss, and treating psychologist, Dr. 16

Mehdikhan. AR 25-30. Ms. Bliss noted that Ortiz presented as depressed and had symptoms of 17 PTSD. AR 28. Dr. Mehdikhan opined that Ortiz suffered from PTSD, depression, anxiety and 18 borderline cognitive dysfunction. AR 377. Finally, the ALJ consulted the medical expert, Dr. 19 Singer, at the hearing. AR 53. While Dr. Singer agreed with Dr. Mehdikhan's diagnosis of a 20 generalized anxiety disorder and depression, he testified that there was no basis for finding that 21 Ortiz had a cognitive disorder. AR 57, 58. The ALJ was entitled to give more weight to Dr. 22 Singer's opinion than to that of Dr. Mehdikhan in light of the conclusory and limited nature of the 23 "check the box" Mental RFC Questionnaire in which Dr. Mehdikhan opined that Ortiz may have 24 borderline cognitive dysfunction. See Molina, 674 F.3d at 1111. Given Dr. Singer's testimony, the 25 evidence in the record was not ambiguous or so inadequate as to preclude proper evaluation of the 26 evidence. 27 28

Accordingly, the Court finds that the ALJ fulfilled his duty to develop an adequate record 2 with respect to Ortiz's mental impairments and to reach findings that were supported by substantial 3 evidence.

B.The ALJ's Assessment of Plaintiff's Credibility is Supported by Substantial


Ortiz argues that the ALJ improperly discredited her statements regarding the "intensity, 6 persistence" and "functionally limiting effects" of her symptoms. See Mot. at 7. "In assessing the 7 credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the 8 ALJ engages in a two-step analysis." Molina, 674 F.3d at 1112. "First, the ALJ must determine 9 whether there is objective medical evidence of an underlying impairment which could reasonably 10 be expected to produce the pain or other symptoms alleged." Id. "If the claimant has presented 11 such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms." 13

Id. (internal quotation marks and citation omitted). However, "the ALJ is not 'required to believe 14 every allegation of disabling pain, or else disability benefits would be available for the asking, a 15 result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'" Id. (citing Fair v. Bowen, 885 F.2d 597, 603 16 (9th Cir. 1989)). 17

When weighing the credibility of an individual seeking disability benefits, the ALJ may 18 consider the following factors: "claimant's reputation for truthfulness, inconsistencies either in 19 claimant's testimony or between [her] testimony and [her] conduct, claimant's daily activities, 20 [her] work record, and testimony from physicians and third parties concerning the nature, severity, 21 and effect of the symptoms of which claimant complains." Thomas, 278 F.3d at 958-959 (internal 22 quotation marks and citation omitted). 23

Here, the ALJ found Ortiz's allegations and testimony regarding her symptoms "not 24 entirely credible," in light of: (1) Ortiz's "subjective complaints;" (2) "the absence of medically 25 determinable impairments which can reasonably be expected to produce her symptoms;" (3) "the 26 absence of clinical signs and laboratory findings in the case record that would support the 27 complainant's subjective complaints;" (4) "the absence of longitudinal records showing regular 28 contact with physicians;" (5) Ortiz's "receipt of only routine and conservative treatment without 2 reasonable or credible explanation despite complaints of disabling symptoms;" (6) Ortiz's "lack of 3 attempts to obtain relief from pain and other symptoms by participating in treatment and showing 4 up for appointments;" (7) "the lack of consistency of [Ortiz's] subjective complaints throughout the 5 medical record;" (8) "the observations of administration personnel who noted that [Ortiz] had no 6 difficulty concentrating, talking, or understanding at the time her disability application was taken." 7

In addition, the ALJ stated that he "carefully observed [Ortiz] at the hearing, and found that she 8 demonstrated sufficient ability to concentrate, focus, answer questions, and interrelate to cast doubt 9 upon the credibility of her testimony." AR 30. 10

Ortiz alleges that the ALJ's credibility assessment was not supported by substantial evidence because: (1) the ALJ failed to consider Ortiz's proffered reasons for receiving only limited medical treatments; see Mot. at 8; (2) the ALJ improperly considered Plaintiff's drug use as 13 a credibility factor, see id.; and (3) the ALJ's findings were "improperly beset" by the erroneous 14 assumption that no medically determinable impairments existed in the record that could have 15 caused Plaintiff's symptoms, see Mot. at 7-8. The Court addresses each of these in turn. 16

1.Ortiz's Testimony and Actions Regarding Medical Treatment

At the outset, the Court recognizes that at least three of the eight justifications explicitly 18 provided by the ALJ for finding that Ortiz lacked credibility relate to the limited treatment Ortiz 19 sought to alleviate her symptoms. See AR 30. Ortiz contends, however, that she "told SSA that 20 she had two problems: (1) treatment had not helped or aggravated her condition; and (2) getting 21 other treatments was delayed by lack of medical benefits coverage." Mot. at 8 (citing AR 244). 22

The ALJ did not find Ortiz's first explanation to be persuasive. Nowhere in the opinion does the 23 ALJ mention the second reason, Ortiz's lack of medical coverage. 24 As the Ninth Circuit noted in Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007), "[i]n some 25 circumstances, a failure to seek treatment or a failure to follow a prescribed treatment is properly 26 used as evidence supporting a conclusion that the claimant is not credible in describing his or her 27 symptoms. The most common such circumstance is a claimant's complaint about disabling pain 28 that cannot be objectively ascertained." Id. at 638; see also id. ("Our case law is clear that if a 2 claimant complains about disabling pain but fails to seek treatment, or fails to follow prescribed 3 treatment, for the pain, an ALJ may use such failure as a basis for finding the complaint unjustified 4 or exaggerated."). However, "disability benefits may not be denied because of the claimant's 5 failure to obtain treatment he cannot obtain for lack of funds." Id. (citing Gamble v. Chater, 68 6 F.3d 319, 321 (9th Cir. 1995)); see also Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) 7 (finding social security plaintiff's lack of insurance "a good reason" for not taking medication for 8 her symptoms). "Adjudicators may not draw any inferences about an individual's symptoms and 9 their functional effects from a failure to seek or pursue regular medical treatment without first 10 considering any explanations that the individual may provide . . . that may explain infrequent or irregular medical visits or failure to seek medical treatment including inability to pay . . . ." Orn, 495 F.3d at 638 (internal quotation marks and citation omitted) (emphasis added). 13

If the ALJ concluded that Ortiz was not credible because she did not pursue medical 14 treatments for which she could not pay, there would be clear error. However, the ALJ's evaluation 15 appears focused more on the limited assistance Ortiz sought from the medical providers she was 16 able to access, which is a permissible basis for making an adverse credibility determination. 17

Specifically, the ALJ was troubled by the fact that Ms. Bliss described Ortiz as an "inconsistent 18 client," and that, "[d]espite reporting that she felt 'better' following a therapy session, the claimant 19 cancelled sessions and was sometimes a 'no show.'" AR 28. In addition, Ortiz would not return 20 phone calls inquiring about her well-being. AR 318. Ortiz does not claim that her inconsistent 21 treatment with Ms. Bliss was attributable to a lack of medical insurance. Rather, Ortiz claims that 22 she "discontinued therapy because it made her condition worse." AR 28. The ALJ did not find 23 this explanation believable. Instead, the ALJ found that Ortiz's "failure to attend sessions and 24 follow-up with treatment indicates that the claimant's symptoms must have not been as bad as she 25 alleged." AR 28. As the Ninth Circuit noted in Fair v. Bowen, "[w]hile there are any number of 26 good reasons for [failing to seek treatment or not following a prescribed course of treatment] . . . a 27 claimant's failure to assert one, or a finding by the ALJ that the proffered reason is not believable, 28 can cast doubt on the sincerity of the claimant's pain testimony." Fair, 885 F.2d at 603 (emphasis 2 added). 3

Moreover, the ALJ placed great emphasis on the fact that Ortiz is not taking any medication 4 to alleviate her symptoms as another reason for doubting the severity of Ortiz's complaints. 5

Specifically, the ALJ found it "hard to believe that [Ortiz] would not have sought at least a low 6 dose of anti-anxiety medications if her symptoms were as bad as she reported." AR 28; see also 7 AR 30 ("The claimant testified that she continues to suffer mental symptoms. Yet, the claimant 8 reported that she has never taken and continues to take no psychiatric medications."). In addition, 9 the ALJ noted that, although Ortiz "reported more consistent and significant symptoms [to Dr. 10 Mehdikhan] than those reported previously . . . there is no indication that Dr. Mehdikhan recommended that the claimant see a psychiatrist or start psychiatric medication, despite her many symptoms." AR 29. The ALJ continued, "[a]s confirmed by the claimant at the hearing, the 13 claimant is not taking any medications for her condition." AR 29; cf. AR 73 (stating, during the 14 hearing, that the primary reason Ortiz had not gone to the doctor to get prescriptions to help her 15 headaches was "because I don't want to be on medication. I don't want to take pills."); but see 16 Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) ("Impairments that can 17 be controlled effectively with medication are not disabling for the purpose of determining 18 eligibility for SSI benefits."). The ALJ's negative credibility inference based on Ortiz's 19 interactions with her health care providers is not clearly improper. 20

2.Ortiz's Testimony Regarding Substance Abuse

The ALJ also premised his adverse credibility determination, in part, due to the 22 inconsistencies in the record regarding Ortiz's prior drug use. Ortiz argues that her successful 23 sobriety through a spiritual rehabilitation course should have enhanced her credibility and should 24 not have been a basis for a negative inference. Mot. at 8. Ortiz misreads the ALJ's analysis. The 25 ALJ did not question Ortiz's credibility simply because she had been a methamphetamine user. 26

Rather, the ALJ questioned Ortiz's credibility because Plaintiff's admission of methamphetamine 27 use was inconsistent. AR 29 ("While the undersigned does not find drug use to be material in 28 [Ortiz's] case, the undersigned considers it a credibility factor to be evaluated in accordance with 2 SSR 96-7p"). "In determining credibility, an ALJ may engage in ordinary techniques of credibility 3 evaluation, such as considering claimant's reputation for truthfulness and inconsistencies in 4 claimant's testimony." Burch, 400 F.3d at 680 (emphasis added). Here, Ortiz testified that she was 5 never addicted to methamphetamines and that she had taken methamphetamines "altogether maybe 6 six times." AR 69, 71. Ortiz admitted having methamphetamine in her system when she was 7 assaulted, and explained that it was merely incidental to the assault. AR at 70. However, Ortiz's 8 emergency room report stated that she had a "[h]istory of drug use: methamphetamines," and that 9 "[s]he used meth regularly, about twice a week." AR 272-273. Ortiz's fiance also testified that 10 Ortiz had used methamphetamines once or twice a month with him, which the ALJ noted as significant. AR 29, 98. Thus, Ortiz's testimony about her drug use is inconsistent with the rest of the record. It was proper for the ALJ to give weight to these inconsistencies in assessing Ortiz's 13 credibility. See Burch, 400 F.3d at 680. 14

3.The Absence of Medically Determinable Impairments

Ortiz further argues that the ALJ erred by basing part of his adverse credibility finding on "the absence of medically determinable impairments which can reasonably be expected to produce 17 her symptoms." See Mot. at 7-8 (referring to the ALJ's findings at AR 30). The Court finds the 18 ALJ's reliance on this reason as a basis for discounting Ortiz's credibility to be perplexing in light 19 of the fact that, at step three, the ALJ found that Ortiz has PTSD, anxiety, depression, 20 polysubstance abuse, which the ALJ deemed "severe impairments." Moreover, the rest of the 21 ALJ's analysis of Ortiz's RFC appears to assume the presence of these severe impairments. See, 22 e.g., AR 28 (noting in the context of his RFC analysis that Ms. Bliss found that Ortiz "presented as 23 depressed and had symptoms of PTSD" and that consultative psychologist, J. Marinos Ph.D., 24 "diagnosed post-traumatic stress disorder and methamphetamine abuse"). Further, Dr. Singer and 25 Dr. Marinos agreed that Ortiz's symptoms were consistent with one or more of these impairments. 26

See AR 53, 58. Consequently, the Court does not find that "the absence of medically determinable 27 28 impairments which can reasonably be expected to produce her symptoms" to be a proper basis for 2 discounting Ortiz's credibility. 3 However, even if the ALJ erred in relying, in part, on "the absence of medically 4 determinable impairments which can reasonably be expected to produce her symptoms" to find 5 Ortiz's testimony and allegations regarding her symptoms "not entirely credible," the Court finds 6 that any such errors were harmless. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.2008) 7 (holding that harmless error "exists when it is clear from the record that the ALJ's error was 8 inconsequential to the ultimate non-disability determination.") (internal quotation marks omitted). 9

As noted previously, the ALJ found Ortiz "not entirely credible" due to Ortiz's inconsistent 10 statements regarding her prior drug use, irregular attendance at counseling sessions, and unwillingness or disinterest in taking medication to treat her symptoms. The ALJ also expressed concern about "the absence of clinical signs and laboratory findings in the case record that would 13 support the claimant's subjective complaints." AR 30. For example, the ALJ noted that "there is 14 no record of complaints to any physician of physical or mental symptoms." AR 28. In addition, 15 the ALJ found that Ortiz's symptoms were not as severe as she indicated due to "the lack of 16 consistency of [Ortiz's] subjective complaints throughout the medical record," and careful 17 observations made of Ortiz during the hearing, which supported the ALJ's finding that Ortiz 18 "demonstrated sufficient ability to concentrate, focus, answer questions, and interrelate to cast 19 doubt upon the credibility of her testimony." AR 30. While an "ALJ's observations of a 20 claimant's functioning may not form the sole basis for discrediting a person's testimony . . . [they] 21 may be used in the overall evaluation of the credibility of the individual's statements." Orn, 495 22 F.3d at 639 (internal quotation marks and citations omitted). 23

Overall, the Court finds the ALJ's adverse credibility determination to be supported by 24 specific, clear, and convincing reasons. In addition, the ALJ's findings regarding Ortiz's RFC 25 appear to be supported by the record as a whole. "Where . . . the ALJ has made specific findings 26 justifying a decision to disbelieve an allegation of excess pain, and those findings are supported by 27 28 substantial evidence in the record, our role is not to second-guess that decision." Fair, 885 F.2d at 2 604 (citing Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 1988)). 3

C.Plaintiff Fails to Demonstrate Materiality and Good Cause for Remand Based on New Evidence specifically, the new neuropsychological report prepared by Dr. Chaffee. Ortiz argues that Dr. 6 Chaffee's report is "the first and only" neuropsychological assessment ever performed. Mot. at 6. 7 Using "standardized calibrated test results," Dr. Chaffee's report allegedly established a new 8 medical condition "Postconcussive Disorder," and demonstrated "long-lasting, and work-9 precluding, effects from the incident." Id. 10

To justify a remand based on new evidence, Ortiz must show that Dr. Chaffee's report is Finally, Ortiz argues that the Court should remand this case based on new evidence, material to determining her disability, and that she had good cause for failing to produce the 12 evidence earlier. See 42 U.S.C. § 405(g) (2010). To be material under section 405(g), the new 13 evidence must bear "directly and substantially on the matter in dispute." Mayes, 276 F.3d at 462. 14

Ortiz must additionally demonstrate that there is a "reasonable possibility" that the new evidence 15 would have changed the outcome of the administrative hearing. Id. (citing Booz v. Sec'y of Health 16 & Human Services, 734 F.2d 1378, 1380-81 (9th Cir. 1984)). 17

Here, Ortiz fails to demonstrate a "reasonable possibility" that Dr. Chaffee's report would 18 have changed the outcome of the hearing. First, Dr. Chaffee's opinion would have carried limited 19 weight, because Dr. Chaffee merely saw Ortiz once and admitted that she had "no medical records 20 available for review." Mot. Ex. 1 at 2, 7; cf. 20 C.F.R. § 416.927 ("Generally, the longer a treating 21 source has treated you and the more times you have been seen by a treating source, the more 22 weight we will give to the source's medical opinion."). 23

Further, Dr. Chaffee's assessment of Ortiz's work-related abilities does not necessarily 24 contradict that of the ALJ's. For example, Dr. Chaffee noted that "Plaintiff is cognitively able to 25 engage in simple and repetitive work that does not rely on spatial relationships (like assembly)." 26 Mot. Ex. 1 at 9. This is consistent with the ALJ's finding that Ortiz "is limited to simple, routine, 27 and repetitive tasks." AR 27. Dr. Chaffee also determined that Ortiz had demonstrated "Marked" 28 level of impairments in "adapt[ing] to changes in job routine," "withstand[ing] the stress of a 2 routine work day," and "interact[ing] appropriately with co-workers and the public." Mot. Ex. 1 at 3 9-10. The ALJ likewise noted that Ortiz should be limited to low stress jobs involving only 4 occasional changes in the work setting, and to jobs that "require only occasional conversation and 5 interpersonal interactions." AR 27. Thus, notwithstanding Dr. Chaffee's new diagnosis of 6 Postconcussive Disorder, see Mot. Ex. 1 at 6, the Court is not convinced that "a reasonable 7 possibility" exists that the new report would have changed the outcome of the administrative 8 hearing. See Mayes, 276 F.3d at 462. Accordingly, the Court finds that Ortiz fails to demonstrate 9 the materiality of Dr. Chaffee's report. See 42 U.S.C. § 405(g) (2010). 10

Moreover, "[a] claimant does not meet the good cause requirement by merely obtaining a more favorable report once his or her claim has been denied. To demonstrate good cause, the 12 claimant must demonstrate that the new evidence was unavailable earlier." Mayes, 276 F.3d at 13 463. Here, even assuming that Dr. Chaffee's report was material to determining Ortiz's disability, 14 Ortiz plainly fails to explain why the new evidence was unavailable during prior proceedings. 15

Ortiz seems to argue that the need for a neuropsychological assessment was "not obvious" until Dr. 16 Singer pointed out the deficiency of Dr. Mehdikhan's opinion at the hearing. Mot. at 6. Ortiz 17 further argues that the agency's "limited in scope" psychological evaluation, which reported only 18 PTSD and polysubstance abuse, but not depression or anxiety, demonstrated the "obvious need" 19 for "better mental RFC evidence." Id.; Reply at 3. However, Ortiz was well aware of both the 20 agency's evaluation and Dr. Singer's opinion testimony since June 1, 2010, the day of the 21 administrative hearing. AR 45, 285. Ortiz had ample opportunity to prepare and submit the 22 neuropsychological assessment report before the Appeals Council denied review on September 27, 23 2010. See AR 7, 19. But Plaintiff chose to wait until September 29, 2010, two days after the 24 Appeals Council denied review, to participate in the neuropsychological assessment. See Mot. Ex. 25 1 at 1. Plaintiff fails to demonstrate that the neuropsychological assessment is anything more than 26 an attempt to "obtain[] a more favorable report once.her claim has been denied." Mayes, 276 27 F.3d at 463. Thus, Ortiz fails to show good cause for her failure to incorporate the new evidence 28 into the record in a prior proceeding. See id. Having failed to demonstrate materiality and good 2 cause, Ortiz is therefore not entitled to a remand based on the newly submitted evidence. See 42 3 U.S.C. § 405(g). 4


The Court finds that substantial evidence supports the ALJ's assessment of Ortiz's residual 6 functional capacity to perform a full range of work at all exertion levels but with non-exertional 7 limitations, and that significant jobs exist in the national economy that Ortiz can perform. 8

Accordingly, Plaintiff's Motion for Summary Judgment is DENIED. Defendant's Cross-Motion 9 for Summary Judgment is GRANTED. 10

United States District Court For the Northern District of California


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